This event is in-person, but with a hybrid aspect – you will be able to access the Zoom session HERE. And you can access the paper HERE – pre-reading optional.

Abstract:

This paper seeks to develop a normative foundation for the criminal law’s main outcome-responsive features. These are not just the very existence of result-based crimes, but also the marked differences that exist between the liability regimes for result-based crimes of intent, on the one hand (where in the absence of a bad outcome, there is typically criminal liability for a different offence, namely an attempt, the maximum available punishment for which is often the same as for the completed offence) and the liability regimes for result-based crimes of negligence, on the other hand (which frequently attract substantially less grave punishment than do result-based crimes of intent in respect of the same bad result, and where negligent conduct is only selectively criminalised in the absence of bad results).

My defence of the relevance of outcomes draws on a particular account of the connection between agents and outcomes that follows, and builds upon, the work of 17th century scholar Samuel Pufendorf. Pufendorf’s doctrine of imputation allows me to trace an agent’s responsibility for an outcome through any marker of faulty agency, excluding only such occurrences which bear no traces of an agent’s personal agency. From this perspective it makes good sense for the outcomes of faulty agency to matter for criminal liability. However, that still leaves unexplained the extent to which the criminal law subjects intended and negligently-produced unintended outcomes to different liability regimes. In order to explain these differences, I therefore turn to the work of Alan Brudner, who draws on Hegel’s theory of agency to develop a version of imputation which generates the important upshot that outcomes may matter differently depending on whether they were intended by the agent, or whether they were brought about by the agent in some other culpable way.

While Brudner’s account helps us to see why an agent is fully responsible for an intended outcome, Brudner’s ownership analogy appears to place in doubt whether outcome-dependent crimes of negligence can be justified. For how can the criminal law’s practice of making the occurrence of the outcome the linchpin for serious offences of criminal negligence be defended, if it is indeed correct that – as Brudner successfully shows – we have a more divestible connection to the negligently-produced unintended outcomes of our agency than to those we intended to bring about?

To defend this final feature of an outcome-responsive criminal law, I return to my earlier discussion of the concept of imputation as originally introduced by Pufendorf. Pufendorf’s account allows us to appreciate that the questions, whether an agent is responsible for an outcome – whether the outcome is something the agent did – and whether merit or demerit arises for the agent in respect of his deed thus constituted, are questions that need to be kept distinct. Combined with the major insight from the discussion of Brudner’s work on imputation – that the harmful consequence qualifies the negligent deed in a different way from how it qualifies a deed where the outcome was intended – this permits me to show that it is appropriate for the criminal law to cast crimes of negligence as result-crimes, but also to treat such crimes as far less serious offences than the equivalent intent-based result-crimes.

About the Speaker:

Professor Antje du Bois-Pedain is Professor of Criminal Law and Philosophy at the University of Cambridge, Deputy Director of the Centre for Penal Theory and Penal Ethics at the Institute of Criminology, and a Fellow of Magdalene College.

In the Faculty of Law, Professor du Bois-Pedain lectures Criminal Law and teaches a seminar course on Select Issues in Criminal Law and Criminal Justice. She also runs the Criminal Jurisprudence and Philosophy group for staff and research students across Law and Criminology who work on ethical or theoretical aspects of criminal law and criminal justice.